55 F.3d 1241 (7th Cir. 1995), 94-2075, United States v. Messino

Docket Nº:94-2075.
Citation:55 F.3d 1241
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Clement A. MESSINO, Defendant-Appellant.
Case Date:April 13, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1241

55 F.3d 1241 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Clement A. MESSINO, Defendant-Appellant.

No. 94-2075.

United States Court of Appeals, Seventh Circuit

April 13, 1995

Argued Dec. 2, 1994.

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Matthew R. Bettenhausen, Asst. U.S. Atty., Luis F. Sanchez, Asst. U.S. Atty. (argued), Crim. Div., Barry Rand Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

Douglas P. Roller, Roller & Associates, Naperville, IL (argued), Richard M. Beuke, Chicago, IL, for Clement A. Messino.

Before CUMMINGS, BRIGHT, [*] and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The defendant, Clement A. Messino, a former Chicago, Illinois Police Officer, was indicted for cocaine trafficking in violation of 21 U.S.C. Sec. 841(a), possession of firearms as a known felon 1 in violation of 18 U.S.C. Sec. 922(g)(1), unlawfully possessing and transferring firearms in violation of 18 U.S.C. Sec. 922(o)(1), and escaping from federal custody in violation of 18 U.S.C. Sec. 751(a). He entered pleas of guilty to four cocaine charges, three charges of illegal possession of firearms, and one charge of escape from federal custody. Shortly thereafter he filed a motion to withdraw his guilty pleas, which the district court denied, and proceeded to sentence him to 112 months in prison. Messino appeals the district court's denial of his motion to withdraw his guilty pleas to the eight counts of the superseding indictment, and to enhance his sentence, pursuant to U.S.S.G. Sec. 2K2.1(b), for possessing and selling six firearms knowing that they would be used in another offense. We affirm.

FACTUAL BACKGROUND

Clement A. Messino pleaded guilty to making four separate cocaine sales totalling approximately 700 grams, at the Auto Abbey, his place of business in Harvey, Illinois, as well as two separate sales of firearms to a government undercover confidential informant (CI) between August, 1991, and January 29, 1992. The CI posed as a criminal engaged in the business of selling both narcotics and guns. He boasted of his association with several well known crime figures, claiming that he was associated with the Imperial Gangsters, a local street gang, and stated that he was willing to commit murder.

All transactions between the defendant and the CI were not only tape recorded, but were also observed by federal agents. During most of the transactions, a Bureau of Alcohol, Tobacco, and Firearms (ATF) agent accompanied the CI and posed as his friend, but Messino never transacted any business in front of the agent because he said that he never did any illegal business in front of people he did not know. At one time, Messino threatened the CI with serious injury should he ever discover that he was wearing a "wire."

On August 13, 1991, the CI and Messino entered into negotiations for the purchase of cocaine. The CI met the defendant at the Auto Abbey, and the two men negotiated for the price for one half kilogram of cocaine to be between $12,500 and $14,500. On August 30, the CI returned to the Auto Abbey wearing a transmitter. During this meeting, Messino sold him approximately 79.4 grams of cocaine for $3,330, and on September 4, Messino sold the CI another 109.3 grams of cocaine for $4,500. On September 10, Messino and the CI entered into another drug deal, culminating in the sale of 448.7 grams of cocaine for $10,500 on September 16. In addition to a tape recording of these negotiations,

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Messino's fingerprints were found on the package of cocaine.

On September 13, during the course of these negotiations, the defendant's business, residence, cars and other properties were seized pursuant to a federal civil forfeiture complaint and affidavit. 2 Messino told the CI about the seizure on September 16, at which time the defendant offered the CI three kilograms of cocaine in exchange for killing his ex-girlfriend, who he believed was responsible for turning him in to the authorities and responsible for the forfeitures.

The CI met with Messino again on November 12, 1991, and advised him that he wanted to purchase a fully automated machine gun with a silencer, a sawed-off shotgun and a pistol. The defendant agreed to obtain the weapons and the men arranged for another meeting on November 17. An ATF agent gave the CI $2,500 for the weapons and placed a transmitter on him to record the sale. After the CI purchased the weapons, he turned them over to the authorities, and the ATF agent observed that the serial number had been scratched off the silencer.

On December 6, Messino sold the CI a 9 millimeter Smith & Wesson semi-automatic pistol with a silencer for $2,000. The serial numbers were scratched off the weapon and the silencer. During the recorded transaction, Messino stated that he had access to other weapons. On January 24, 1992, the two men met to negotiate the sale of three more ounces of cocaine and another firearm. The CI made a final trip to the Auto Abbey on January 29, and purchased another three ounces of cocaine. Messino was arrested after he agreed to sell the CI a MAC-10 firearm later that night. 3

On February 26, 1992, a grand jury returned a nine count indictment charging Messino with distributing narcotics, possession of a firearm as a felon, and unlawfully possessing and transferring firearms and a silencer. During his initial appearance in court on February 28, the defendant entered pleas of not guilty. Subsequently, the defendant and his attorney entered into plea negotiations with the government and during the course of these negotiations, the defendant, who was incarcerated at the Metropolitan Correctional Center (MCC), suffered a heart attack. Shortly thereafter he requested the court grant him permission to travel to Northwestern Memorial Hospital, with family members, for specialized medical treatment. The prosecution agreed to this request and the district court granted a medical furlough between March 30 and April 3, on the condition that the defendant return to the MCC when his treatment was completed. The defendant was also given permission to return to the hospital on various occasions for follow-up treatment.

During one of Messino's follow-up visits to the hospital on July 2, 1992, he violated the conditions of his release by escaping from federal custody. Six weeks later, the government located Messino in Florida and arrested him on August 14. On November 5, 1992, a grand jury returned a superseding indictment adding a tenth count charging Messino with escaping from federal custody.

The plea negotiations were re-opened, and Messino asserts that he asked his attorney about the possibility of an entrapment defense should they go to trial and he inquired about the "stacking" of charges against him, but that his attorney told him that these defenses were not appropriate in this case. On September 27, 1993, the defendant ostensibly appeared before the court to plead guilty to four cocaine counts, three counts of illegal possession of firearms by a felon, and one count of escape from federal custody, but he refused to plead and requested additional time to consult with his family. The court

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agreed and arranged with the MCC to allow Messino to visit with his family.

The defendant alleges that during the next few days, he was under incredible pressure from his family and his attorney to plead guilty to the crimes charged. He says that his counsel urged him to plead guilty and advised him that the government was offering him the best deal he could get and that if he went to trial, he could receive twice the amount of prison time set forth in the plea agreement. Messino further alleges that his attorney spoke to his wife in order to convince her to urge him to plead guilty.

Messino claims that he tried to get an order releasing his seized funds so that he could retain a different attorney, but that his current attorney refused to file a motion to that effect. While the defendant states that he filed a pro se motion requesting a continuance in order to consult with substituted counsel, the docket entry fails to reflect that a motion of this nature was ever filed. Messino met with his wife and son to seek advice concerning the question of whether he should or should not plead guilty. At this family conference, his wife urged him to enter the pleas while his son told him that during the week, he and his siblings were asked to sign affidavits pertaining to the knowledge they had of their father's illegal activities, thus, according to Messino, in effect, forcing them to provide evidence against their father. The siblings were also advised that in the alternative, if they declined, they would be subpoenaed to testify before a grand jury.

On October 1, 1993, Messino pleaded guilty to eight of the ten counts in the superseding indictment, pursuant to a written plea agreement, and the district court conducted a plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. 4 The judge made findings reflecting that Messino understood the nature of the charges against him, that he entered the pleas voluntarily, and that there was a sufficient factual basis to support the pleas of guilty. The court accepted the defendant's pleas. In spite of all the information explained to and elicited from Messino, he now claims that this proceeding was "formalistic in nature, requiring simply affirmative or negative responses."

On November 3, 1993, the defendant's attorney filed a motion to withdraw as Messino's counsel and attached a copy of Messino's pro se motion to withdraw his guilty plea. 5 The court granted the attorney's motion to withdraw on November 10, and on November...

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